The FSIA's Definition of a 'Foreign State'

AuthorErnesto Sanchez
Pages49-59
49
THE F SIA’S DEF I NI TION OF A
FOR EI GN STAT E
§ 4.1 INTRODUCTION
Nowhere in its text or legislative history does the FSIA restrict the right to bring a claim to any
specic kind of plainti (e.g., restrictions on natural or juridical persons, nationality). Instead, the
statute focuses on potential defendants and their prospective immunities,1 constituting the “sole
[jurisdictional] basis” for private civil actions against defendants that meet the statute’s deni-
tion of the term “foreign state.”2 ese defendants—foreign states proper, political subdivisions
of foreign states, and agencies or instrumentalities of foreign states or foreign states’ political
subdivisions—are immune from such actions unless the statute enumerates a specic exception.3
e rst step to resolving whether foreign sovereign immunity attaches to a defendant, then, is
to determine whether the defendant falls under the FSIA’s denition of a “foreign state.”4
1. See 28 U.S.C. § 1330(a)(“e district courts shall have original jurisdiction without regard to amount in contro-
versy of any nonjury civil action against a foreign state as dened in [this statute] as to any claim for relief in personam
with respect to which the foreign state is not entitled to immunity . . .”); Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 489-90 (1983) (interpreting FSIA’s text and legislative history to allow the presence of foreign nationals
on both sides of a dispute); House Report at 6604 (“e purpose of the proposed legislation, as amended, is to provide
when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and
to provide when a foreign state is entitled to sovereign immunity.”).
2. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989); see also 28 U.S.C. §§ 1330(a)
(“e district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action
against a foreign state as dened in [this statute] as to any claim for relief in personam with respect to which the foreign
state is not entitled to immunity . . .”) (emphasis added); 1605A(a) (“A foreign state shall not be immune from the juris-
diction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money
damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or
provision of material support or resources is engaged in by an ocial, employee, or agent of such foreign state while
acting within the scope of his or her oce, employment, or agency.”) (emphasis added); Adler v. Federal Republic of
Nigeria, 219 F.3d 869, 875 (9th Cir. 2000) (ruling that FSIA’s commercial activity exception does not encompass illegal
activity by itself, but a contract for illegal activity); United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) (rul-
ing that FSIA does not address “foreign sovereign immunity in a criminal context”), cert. denied, 523 U.S. 1060 (1998);
but see infra Pt. III, Ch. 19 (explaining how FSIA does not apply to certain bankruptcy actions).
3. See 28 U.S.C. §§ 1604 (“Subject to existing international agreements to which the United States is a party at the
time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States
and of the States except as provided [in this statute].”); 1605-1605A (enumerating exceptions to the general rule of
foreign sovereign immunity); Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (“Under the Act, a foreign state is pre-
sumptively immune from the jurisdiction of United States courts; unless a specied exception applies, a federal court
lacks subject-matter jurisdiction over a claim against a foreign state.”) (citing Verlinden, 461 U.S. at 488-89).
4. e FSIA’s denition of the term “foreign state” can cause confusion, especially given how the FSIA distinguishes
between potential defendants in some instances, but not in others. See, e.g., 28 U.S.C. § 1608(a), (b) (prescribing dif-
ferent methods of service of process, and consequently establishing personal jurisdiction, over foreign states proper and
their political subdivisions, as opposed to agencies or instrumentalities of foreign states). For ease of reference, this book
has utilized and will continue to utilize the phrase “foreign sovereign defendants,” the term “defendant,” or the term
“foreign state” (i.e., within quotation marks) when collectively referring to all defendants that foreign sovereign immu-
nity presumptively protects. Otherwise, references to foreign states will denote foreign states alone.
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ForSovImmunAct_book.indb 49 4/11/13 3:31 PM

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